Federal judge rules in favor of transgender student in case against Highland school district

Tuesday

Sep 27, 2016 at 12:01 AMSep 27, 2016 at 12:19 AM

A federal judge has ordered a local school district to treat a transgender student as a girl and to let her to use the girls bathroom at her elementary school. The Highland Local School District must also refer to the student as a girl, including using her female name and female pronouns.

Earl Rinehart, The Columbus Dispatch

A federal judge has ordered a local school district to treat a transgender student as a girl and to let her to use the girls bathroom at her elementary school.

The Highland Local School District must also refer to the student as a girl, including using her female name and female pronouns.

The school district, which covers parts of Delaware, Knox and Morrow counties, argued at a hearing last week that its policies require it to treat students based on the gender recorded at birth. It sued the U.S. Department of Education over a decision that said the district violated the Title IX, which prohibits discrimination in any education program or activity receiving federal money.

Judge Algenon L. Marbley presided at last week’s hearing and issued his decision in favor of the 11-year-old girl and her family this evening.

He found that Jane Doe is likely to win her equal-protection claim and that she would suffer irreparable harm without a ruling against the school district. The girl has attempted suicide and stopped going to the individual-user bathroom offered by the school because of bullying by students, according to her injunction request.

Marbley said the district provided no evidence that other students would be harmed by Jane Doe using the girls bathroom.

The U.S. Justice and Education departments sent letters to school districts in May instructing that transgender students be allowed to use bathrooms, showers and locker rooms matching their gender identity, which might or might not match their birth gender. States that violate the directive could lose federal education funding.

Marbley said the school district faces no immediate penalty for noncompliance with Title IX and that the district could appeal if the government cuts off funding because of noncompliance.

The school district has denied Jane Doe’s request to use the girls bathroom every year since her parents first asked before she entered the first grade.

Jane Doe, according to her parents, has been diagnosed with gender dysphoria “for the severe and unremitting emotional pain resulting from the incongruity” between her female gender identity and the male sex he or she was assigned at birth.

The family filed a complaint with the Education Department’s Office of Civil Rights in 2013 alleging that the school district discriminated against Jane Doe.

On June 10, 2016, the office offered a resolution. The district rejected it and sued for an injunction preventing the U.S. Department of Education from enforcing its rule that allows students to access bathrooms and other facilities based on their professed gender identity. Janes Doe’s parents sued on the side of the government saying the district discriminated against her and violated her right to privacy.

A person’s gender identity “is not dictated by their gender activity,” Highland’s attorney, Douglas G. Wardlow, said at last week’s hearing. Wardlow works for the Alliance Defending Freedom, a religious-liberty group based in Scottsdale, Arizona.

“You’re arguing that the only test is ‘drop your trousers,’ ” Marbley said. He said no one would know a transgender student was using a bathroom stall without getting down and peeking under the stall divider.

Marbley asked Jane Doe’s attorney, Asaf Orr, “What about those who don’t want to share a bathroom with someone with a penis.”

Jane Doe enters the bathroom as a girl and the stall provides privacy, said Orr, a lawyer with the National Center for Lesbian Rights. All showers in the school have curtains, and the bathrooms have stalls, he said.

Ohio Attorney General Mike DeWine joined a federal lawsuit with nine other states arguing that a person’s sex is determined by “genes and anatomy,” not “gender identity.”

School administrators in 14 states and the District of Columbia have filed friend-of-the-court briefs supporting the Highland school district’s suit.